Bush Feared Successor Might Revoke Telco Spy Immunity

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Bush Feared Successor Might Revoke Telco Spy Immunity

The George W. Bush administration expressed concern future administrations might not use the legal amnesty it wanted to give the nation's telecommunication companies that were being sued for assisting the president's warrantless, electronic wiretapping program, according to internal documents released Thursday.

The documents, unearthed by the Electronic Frontier Foundation via a Freedom of Information Act lawsuit, also suggest the administration was wary it might first have to concede that the telcos were complicit in the alleged dragnet surveillance to garner congressional support for the amnesty bill. The legislation, passed in July 2008, killed the EFF's federal civil rights lawsuit against the companies.

Then-U.S. Attorney General Michael Mukasey applied for immunity in a technical process known as "certification" two months later. U.S. District Judge Vaughn Walker in San Francisco dismissed the EFF's case against the telcos after concluding the immunity measure was constitutional.

The documents, some of them redacted, highlight that the Bush administration did not want the immunity law to force it to publicly admit or deny the telcos' involvement in what the EFF maintains was dragnet surveillance. The now-defunct lawsuit, citing internal AT&T documents, charged that Americans' electronic communications were funneled illegally to the National Security Agency without warrants. The EFF alleges the dragnet is ongoing.

We'll never know for sure, but perhaps the concerns expressed in the documents highlight why the final bill allowed Mukasey to deny telco participation and still win the immunity legislation. (If the companies did not participate, why would they need immunity?)

Toward that end, an internal Justice Department memo showed the Bush administration favored what it called the "first option."

"The attorney general would submit a certification to the district court that the carrier defendant either did not provide the assistance as alleged, or did so in connection with a counter-terrorism program authorized by the president and pursuant to written assurances of legality," the 2008 Justice Department memo said.

Cindy Cohn, the EFF's legal director and lead lawyer on the case, said the civil rights group had heard rumors that the administration was worried about having to make a public confession to win immunity when the legislation was being crafted last year.

"I suspect that that was something they were concerned about. That is something we heard about through the grapevine," Cohn said in a telephone interview.

What's more, the Bush administration wanted to ensure that future administrations would not have the ability to change course and reverse its position on immunity. That language never made it into the final package, Cohn said.

"Whether the attorney general in a new administration would provide the requisite applications -– even if there is a basis to do so – is uncertain," according to a memo to John Demers, who was an assistant attorney general in the Justice Department's National Security Division under Bush. "To address this concern, I've suggested language …."

Cohn said the EFF has lobbied the Obama administration to revoke Mukasey's immunity request – a proposal that has fallen on deaf ears, despite Obama's campaign pledge to revisit the issue.